Amicus Curiae Brief — Blessing v. Freestone

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

| ere :

€

at Wa No. 95-1441

In the

Supreme Court of the United

Supreme Court. U

Y } FILED

OCT 17 1996

CLERK

October Term, 1996

LINDA J. BLESSING, Director, Arizona Department of

Economic Security, in her official capacity,

vs.

Petitioner,

CATHY FREESTONE, et al.,

Respondents.

On Writ of Certiorari To The United States

Court of Appeals For The Ninth Circuit

La,

¥

BRIEF AMICUS CURIAE OF THE ANTI-POVERTY PROJECT OF

THE EDWIN F. MANDEL LEGAL AID CLINIC OF THE

UNIVERSITY OF CHICAGO LAW SCHOOL IN SUPPORT OF

RESPONDENT

GARY H. PALM

Counsel of Record

6020 South University Avenue

Chicago, Illinois 60637-2786

(773) 702-9611

Attorney for Amicus Curiae,

The Anti-Poverty Project

Edwin F. Mandel Legal Aid Clinic

University of Chicago Law School

In Support of Respondent

January 6, 1997

— 4?

¥

be . fe . 5 ae gai} 2 ve is 3 i

pd Bede Pet” a seats Fee See ee ie

TABLE OF CONTENTS

INTE s OP Time AMICUS CURIAE 2... ccc ccc ccc cccccneee l

ee ee os Sa secu b bee SESénwddbevbecceeses 2

GEE bi ncapeedeks Cbh6 66560 Cote beet es 66-eebUbbeee ds 5

I. An Individual Enforceable Right Is Needed To Fulfill The Promise

RE dn 60d 6660 os b COCEE EE ab ede brdb eed ec ceece 5

A. Congress was justified in creating a §1983 enforceable right in

child support enforcement services. ................... 5

B. Illinois’ Track Record Exemplifies The Need For A §1983 Remedy

Il. Congress intended the requirements in Title [IV-D and the

corresponding regulations to create enforceable rights under all the

opinions (majority and dissents) in the Maine v. Thiboutout line of

Cases

WOTTYTITILILITTI TTT LITE TTT 11

A. Under the reasoning of all the Justices’ opinions who have written

on the subject of §1983, Title IV-D creates a right enforceable

EE od cee te cdeuase seuss ecewet ubet 11

l.

Under the reasoning of Justice Brennan's majority opinion in

Wright, Title [V-D creates a §1983 cause of action. ... 12

Under the reasoning of Justice O’Connor's dissenting opinion

in Wright, Title [V-D creates a §1983 cause of action. . 13

Under the reasoning of Justice Stevens’ majority opinion in

Golden State, Title ['V-D creates a §1983 cause of action. 15

Under the reasoning of Justice Kennedy's dissenting opinion in

Golden State, Title [V-D creates a §1983 cause of action. 15

Under the reasoning of Justice Brennan's majority opinion in

Wilder, Title [V-D creates a §1983 cause of action ... 16

Under the reasoning of Chief Justice Rehnquist's dissenting

opinion in Wilder, Title IV-D creates a §1983 cause of

Saree ere, eS Pry errr ee 16

Under the reasoning of Chief Justice Rehnquist's majority

opinion in Suter, Title 1V-D creates a §1983 cause

DT Leon tideued ce bed 4A 4 bhenkeewl hesenes 18

B. The recent passage of the Suter Override Bill underscores

Congress’ intent to create enforceable rights to the services

included in Title [V-D. .......... seees eeeceeecoeees 20

C. Title IV-D is enforceable under the Dissent in Maine y. a

eee seeteeeeeeeens

D. Title [V-D focuses unmistakably on custodial parents and their

children as beneficiaries of the federal funding. steteeees 23

I. Recognition by this Court of a §1983 cause of action will not result in

a flood of the federal courts. ......-- eee e ee eeeeee sseees 2A

A. IV-D federal enforcement is deficient on paper and a ‘dead letter

iM Practice. 0.1... cece eee eee tree eter ee ee eenees 25

B. Dlinois’ record with HHS demonstrates the failure of Title

TU... ccoviceesoeeeceees baeeekenn ener 25

C. Most §1983 litigants will turn to state, not federal courts to -

pursue their claims. ......---++eeeeeeeees jeeeeeeees

D. The remedies provided under IV-D are not sufficient to

CUATTIGD oo ccccccccccccvcescccsccceesscesecesess 28

E. Title IV-D Does Not Provide a Comprehensive Enforcement

Scheme Foreclosing a Right of Action under §1983. ...... 28

for ok) errr rrrrrr Ty 30

-ii-

TABLE OF AUTHORITIES

CASES: PAGE

O7F34288 (HC. 19) n

441 U.S. 6777 (1979) ) 14

"austin Cir. 1991) 23

209 U.S. 123 28

yo 1995 5, 6, 23,

24

493 U.S. 103 (1989) passim

go ry (M.D. Ala. 1995) 21

"sh abe. 1993) 23

496 US. 3561990) 7

na73 US. 159 (1985) n

ase taee passim

gy 1996) 21

ved US. 27 (1980) n

ooo 4, 12, 22

Pennhurst State School and Hosp. v. Halderman,

451 U.S. 1 (1981) 4, 12, 22

Testa vy. Katt,

330 U.S. 386 (1947)

oe ame rei

STATUTES:

54 Fed. Reg. 32284 (Aug. 4, 1990)

45 C.F.R. §301 et seq.

42 U.S.C. §1983

42 U.S.C. §601 et seq.

42 U.S.C. §652 et seq.

OTHER AUTHORITIES:

The Office of Child Support Enforcement, U.S.

Department of Health and Human Services Report

No. 0-95-PR/PM. Program Results Performance

Measurements Audit, State of Illinois 2

(September 16, 1996)

Improving America’s Schools Act of 1994, Pub. L. No.

103-382, 108 Stat. 3518 (1994), codified in 42

U.S.C. §1320(b)(13) (1994) .

-jv-

5.7

12, 20

4

’

A Study of the Cook County State’s Attorney's Office

Child Support Enforcement Division,

Chicago Council of Lawyers, October, 1995 8

Conference Report on H.R. 11, 102nd Cong., 2nd

Session, 138 Cong. Rec. H. 12552

(October 5, 1992)

The Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, Pub. L. No. 104-193,

1996, 110 Stat. 2105 (1996)

21

INTEREST OF THE AMICUS CURIAE

Pursuant to Court Rule 37, Amicus Curiae respectfully submit this brief in

support of Respondent's request that this Court affirm the Ninth Court decision

that, by creating a private right of action, would uphold Congressional intent

to confer upon mothers and children the right to prompt child support

enforcement services. Consent to the filing of this brief has been granted by

counsel for all parties and letters indicating such consent have been filed with

the Clerk of this Court.

The Anti-Poverty Project of the Edwin F. Mandel Legal Aid Clinic of the

University of Chicago Law School provides services to assist women and

children in obtaining the appropriate governmental services to help them

achieve their economic and personal goals. Almost all of our clients are single

mothers who initially ask for help in obtaining child support enforcement

services from the State of Mlinois under Title [V-D. Many have been waiting

years for Dlinois’ 'V-D agency, the Illinois Department of Public Aid (“IDPA”)

to take the next step in their case. Some have waited up to five years without

even receiving an initial interview. Few of our clients have received timely

services. In every case that the Anti-Poverty Project has sought a written

explanation, the IV-D agency has admitted to serious violations of federal

regulations but has claimed that all that can be done is for the client to wait her

turn in line. Our clients need recognition by this Court that they can enforce

the federal time limits through § 1983 actions in state and federal court.

The Anti-Poverty Project expects to seek enforcement of Title ['V-D deadlines

mostly in state courts. Usually the §1983 claims will be made in the child

support proceeding itself. When IDPA misses deadlines in ordering blood

tests or obtaining the father’s pay records, for example, the Project may seek

to use §1983 to have the Court order IDPA to obey federal regulations and use

its contempt powers if necessary. When necessary, a separate state chancery

action can be used to obtain prompt services for that individual. Because the

Anti-Poverty Project has only one attorney, a part-time social worker and

fourteen University of Chicago law students, it is not in the position to bring

many class actions in federal court. Nonetheless, it is prepared to do so if the

State agencies remain so inadequate. At present, the Project is the only

program in the State of Illinois working to implement Title IV-D nghts.

For most women, child support is needed to move from welfare to work. The

Anti-Poverty Project helps each client develop her own employability plan.

including needed government benefits for training and job placement. Our

is ee -

2

clients often need help with day care, transportation costs, initial employment

expenses and suitable clothing.' While some of these costs can be obtained

from the government and private charities, many cannot. With the new two

year limits on welfare grants in Illinois as recently passed by Congress in the

Welfare Reform Act,’ our clients cannot stay on AFDC waiting out the State's

delays any longer. They need enforceable rights immediately to get their cases

moving again so that they can get off welfare within the next two years.

SUMMARY OF ARGUMENT

Without § 1983 remedies, mothers and their children will have no recourse to

enforce their right to prompt child support enforcement. Congress and the

President gave all American mothers’ and children the right to obtain prompt

child support enforcement services from the States. Congress specifically

instructed the Secretary of Health and Human Servicés to adopt “standards

establishing time limits” so that each case would proceed in a timely fashion.

Each State’s Governor agreed to obey these regulations when the Governor

reviewed and approved the State Plan.

The U.S. Department of Health and Human Services has repeatedly found

that Illinois* has been, and continues to be out of full compliance or even

substantial compliance (75%) with many time limits since the mid-1980's, yet

it has never penalized Dlinois for its negligence. Mothers and children in

Illinois should not be prevented by HHS’ indifference to their plight from

enforcing deadlines in their individual cases. Individual mothers and children

must be able to use § 1983 to enforce these deadlines and obtain services. After

all, the State governments entered into a contract agreeing to meet these

deadlines. If it cannot meet the deadlines, Hlinois should turn the federal money

over to other entities that can meet the deadlines or fire those who are

responsible for the disaster and replace them with effective managers. Literally

‘The wdividual chents we referred to in this bnef have given their consent to disclosing ther

names.

*The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.

104-193, 1996, 110 Stat. 2105 (1996).

"The overwhelming number of custodial parents are mothers and will be referred to

interchangeably as “mothers”. “custodial parents” or “iV -D recipients.”

‘This bnef will frequently analyze the performance of the state of Dunois in complying with

us [V-D requirements. as the State of Dhnois has authored an Amucus bnef representing the

States Moreover. it 1s also the State with which we have the most duect expenence.

3

millions of mothers and children are suffering in poverty or near poverty. As

these children become hungry three or more times a day, grow and need new

clothes and have the other expenses of growing up in America, their mothers

struggle alone to provide and the Government fails them. Fathers flaunt the

system; states are more effective collecting from parking violations scofflaws

than they are from deadbeat dads.

Illinois collects a mere $2.30 for every dollar spent on administrative

expenditures, ranking 48th in collections out of 54 states and territories in

1993. It is no wonder the costs to the State in lost reimbursement of AFDC

and the future costs of dependency on government benefits is staggering.

Mlinois manages to obtain reimbursement for AFDC expenditures in only 8.1%

of AFDC cases. These financial costs would be greatly reduced if the States

met their deadlines. The human costs are incalculable. With a two-year limit

on AFDC and the failure of the State to enforce child support, Illinois AFDC

recipients are scared and trapped. Even with entry-level jobs and day care

Subsidies, most will not be able to make it without child support. Child support

collections are vital to meet the extra costs of work. Mlinois pays an AFDC

grant of $377 per month for a family of three. Savings are out of the question,

as rent alone in Chicago is usually greater than $377. Congress and the

Department of Health and Human Services required Illinois to obey time limits,

and the States agreed. These time limits must be enforceable now in state and

federal courts so that these mothers and children have a fair chance to obtain

enough funds to get off welfare in two years.

Section 1983 is a necessary tool for enforcing the rights of mothers and

children. Individuals can use §1983 rights to enforce the time limits and can

do so without flooding federal courts. In Llinois, the Project's clients already

are relying on §1983 in state court child support proceedings to move for the

setting of scheduling orders to force Illinois to comply with the federal

deadlines. The State's Attorney and the Illinois Department of Public Aid

always Object and move to withdraw. The State takes the absurd position that

individuals cannot enforce these rights to prompt action but must instead drop

Out of the IV-D system entirely. This position vividly shows that the State has

no intention of obeying the deadlines. (Most mothers do not want to lose the

other IV-D services that are not available to private or legal aid attorneys, such

as income tax refund intercepts, Federal and State Parent Locate Services and

interstate enforcement.). So far, the trial judges have recognized the supremacy

of §1983 and federal law. They have refused to allow Dinois to withdraw its

4

services and have ordered more vigorous action to make up for past delays that

violated federal law. In other situations of delay in the state agency before a

case gets to court, individuals need §1983 equitable or mandamus actions in

state court to enforce the federal deadlines. Since the State takes the position

that there are no administrative remedies, §1983 actions are the mothers’ and

children's only recourse. The Illinois statutes do permit a Request for a

Written Explanation of why the delay should be acceptable and a conference

with the Illinois Department of Public Aid. The State's Attorneys’ Office

refuses to attend the conference or respond to the Request for Explanation so

that this process is usually ineffective. The State's Attorney further takes the

position that there is no way to obtain state court review of the administrative

delays under state law. Our only recourse to enforce these federal time limits

in state court is §1983.

When Congress, the President and the Secretary of the Department of Health

and Human Services adopted the Family Support Act and the regulations, they

did so against the background of pre-existing §1983 decisions of this Court.

Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988). At

the time the Act was adopted, it met all the §1983 construction canons used to

determine whether a statute created rights enforceable under §1983. Title IV-D

meets all the requirements set by every justice who has participated in the line

of cases since Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1,

(1981). When Congress perceived that the Court strayed from §1983

jurisprudence in Suter vy. Artist M., 112 S. Ct. 1360 (1992), it responded by

passing the Suter override law. Improving Americas School's Act of 1994,

Pub. L. 103-382, 108 Stat. 3518 (1994), codified at 42 U.S.C. § 1320(b)(13)

(1994). This piece of legislation reaffirmed all prior Supreme Court

interpretations and specifically rejected the exclusion of “State Plan” statutes

from §1983 enforcement.

Moreover, §1983 was adopted for this precise situation when the States

refused to obey federal law. At that time, it was the States’ treatment of the

freed slaves and the federal government's failure to intervene effectively to

enforce thir rights. In 1988, it was the failure of the States to enforce child

suppor: iaws The Child Support Enforcement Act of 1992, Pub. L. No. 102-

537, 106 Stat. 3531 (1992), was adopted because of the failure of the States

to protect a voiceless, voteless underclass of children in our society. In Monroe

y. Pape. 365 U.S. 167, 180 (1961), this Court recognized the importance of

§1983 when States fail to enforce their laws and federal laws because of

5

“prejudice, passion, neglect, intolerance or otherwise." Congress responded

in 1988 to the breakdown in child support enforcement in the States by

“tuming federalism on its head’ and transforming much of state family law into

federal law. The passage of these laws and regulations was bipartisan and

adopted by both the Republican and Democratic Administrations. Even under

the dissent’s position in Maine v. Thiboutout, 448 U.S. 1, 11 (1980) (Powell,

J. dissenting), the Child Support Enforcement Act should be included in the

“laws” enforceable under § 1983 because it is akin to statutes enacted under the

14th Amendment.

The Act explicitly states that each state agency will comply with the time

limits the HHS sets pursuant to Part 303 of 45 C.F.R.; however Illinois and

other states miss the deadlines in nearly every case. It is common for mothers

and their children to wait over five years without paternity being established,

even though the State knows where the father lives and works. Delay is the

enemy of the mothers and children and the friend of the reluctant fathers. Even

though arrearages are occasionally levied against recalcitrant fathers, they can

in no way compensate the children for the days and months of suffering they

endured while they went without basic needs. Many, many children go through

their whole childhood without any money being collected for their support, not

even the minimum of $10.00 per month.

ARGUMENT

I. An Individual Enforceable Right Is Needed To Fulfill

The Promise Of Title IV-D.

A. Congress was justified in creating a §1983 enforceable right in

child support enforcement services.

The Court must affirm the Ninth Circuit's decision because individuals who

are vicums of delay in the child support enforcement programs would otherwise

have no recourse. Freestone v. Cowan. 68 F. 3d 1141 (9th Cir. 1995). The

current IV-D program victimizes its clients too often by disobeying federal

deadlines. In its most recent audit, HHS determined that Dlinois was not in

substantial compliance in the areas of (1) establishment of paternity and

Support orders, and (2) review and adjustment of support orders. Further,

HHS discovered that Illinois had no case management system, as required by

45 C.F.R. 302.15(a(1) and 45 C.F.R. 303.2(c). Without a case management

system, Illinois has no way of even knowing when deadlines expire. The Office

of Child Support Enforcement, U.S. Department of Health and Human

- owe — <<

6

Services, Report No. 0-95-PR/PM, Program Results Performance

Measurements Audit, State of Dlinois 2 (September 16, 1996).

Under Title IV-D all custodial parents, regardless of income, are entitled to

representation in obtaining child support enforcement. While family law used

to be the domain of the states, Title IV-D significantly altered the relationship

between the states and the federal government. IV-D created a massive

infusion of federal funds and federal control into state child support collection

systems. Indeed, the state agencies created under Title IV-D are supposed to

provide the child support enforcement services that used to be provided by

private attorneys and legal aid lawyers. Thus, the child support enforcement

program set up under Title IV-D is the largest legal aid service in the country.

It is also the only legal service in the country permitted to operate in such an

abysmal fashion.

From their very statement of the interests, the States’ Amici Curiae have

attempted to scare this court about the impact of the Freestone decision. The

facts are far different from what the States present. Basically, Dlinois in

writing the States’ Amici Curiae brief, would have this Court say that it may

operate its IV-D program as it wishes, without regard to meeting the federal

deadlines mandated hy Congress, thereby rendering those time limits a dead

letter. These deadlines were arrived at through the administrative process with

significant input from the states. They reflect what would be good practice.

Indeed, from the perspective of most practitioners familiar with the system, the

current deadiines allow for far too much time.

Congress was justified in deciding that there needs to be a uniform system

with standards applicable to each case because the law and processes in each

state are very similar. Also, these deadlines are consistent with what should be

expected of any lawyer representing a client (albeit generally long).

Apparently, the States take the position that if they meet the deadlines in 75

percent of the cases, then they have done their job. But no private lawyer can

say to his or her client, “Well, sure, I missed the deadline in your case, but I

was in compliance with the deadlines in 75 percent of my cases, so you Cannot

sue me and recover for malpractice even though you I have failed.” Worse, the

fact is that the people who must suffer due to this unprofessional and

ineffective conduct are children who live in poverty or will live in poverty if

they do not receive child support from the absent parent.

Title IV-D and the time limit regulations set forth deadlines for each step of

each case. For example, 45 C.F.R. §303.4 requires that “[{w)ithin 90 calendar

7

days of locating the alleged father or non-custodial parent, regardless of

whether paternity has been established, [the IV-D agency must] establish an

order for support or complete service of process necessary to commence

proceedings to establish a support order and, if necessary, paternity.” The

regulation clearly sets forth the time frame in which IV-D agencies must

establish an order for support or complete service of process, yet this deadline

is routinely missed. As a regular practice, the State’s Attomey’s Office of

Cook County, Ilinois* misses an overwhelming number of the deadlines.* This

is not the way to run a law office. Effective attorneys do not violate established

standards for minimal competence and performance. In any law office outside

the sphere of IV-D agencies, such conduct would be grounds for dismissal or

even malpractice liability.

When deadlines are missed, the child at issue is deprived three-fold: 1) he or

she is deprived of the congressionally mandated right to know who his or her

father is, 2) the child is deprived of the federally mandated legal services that

the IV-D agency was to provide, and 3) the child is deprived of the financial

assistance needed to provide for his or her needs. Our clients do not expect that

in every case the states’ efforts will be successful in obtaining child support,

but they do expect the states to take each enforcement action with the

mandatory deadlines set by the federal law.

A wide gulf exists between what the federal regulations require and what the

Illinois TV-D agency actually does. This can best be understood by the

example of Julie Rodriguez, who did not receive any child support enforcement

for 13 years and no child support whatsoever either.

Seventeen years ago, Julie Rodriguez gave birth to a son, Richard. By

December 1980. paternity had been established and a monthly child support

order for $30 was entered. Shortly thereafter Richard’s father ceased paying

the order, and, true to form, the State’s Attomey’s Office took no steps to

enforce it. An effective attomey would have acted when IDPA determined that

the father was not paying his support obligations as required by 45 C.F.R.

$303.6. Pursuant to §303.6, an effective attorney would have taken “any

appropriate enforcement action . . . within no more than 30 calendar days”

Report No. [L-95-PR/PM. Program Results/Performance M ements i

Dhnow 2 (September 16, 1996). _ io saea

wht BRS ee

— ~

a

8

unless service of process was required. If service were required, an effective

attomey would have taken an appropriate enforcement action “within no later

than 60 calendar days.” Instead, the State's Attorney's Office did nothing for

13 years. The State's Attomey's Office waited 158 times longer than the

Federal Regulations permit. She repeatedly tried to contact her Assistant

State's Attomey with no success.

When Ms. Rodriguez implored the State's Attomey's Office in 1995 to be

effective advocates for her, the State’s Attorney's Office again failed to

perform competently in the most basic way by not communicating with her.

Had an Assistant State’s Attorney contacted her, the State's Attorney's Office

would not have filed a second useless paternity action since paternity had

already been established in 1980. An effective attomey would have “solicit(ed)

necessary and relevant information from the custodial parent and other relevant

sources and initiate{d) verification of information.” 45 C.F.R. §303.2. An

effective attorney would have done this either by interviewing Ms. Rodriguez

and asking whether paternity had already been established, or actually checked

the court records for the information. Instead, the State’s Attomey’s Office

failed to do either and wasted court resources and precious time seeking to

establish paternity - again.

The failure to communicate with the client is common with the State's

Attorney's Office.’ The Assistant State's Attorney handling the case often

conducts the first interview with the client in the courtroom under oath before

the judge, subject to cross-examination by the opposing party. An effective

attorney would meet with her client privately, outside the courtroom, off the

record. to secure the information necessary to advocate effectively for her

client. Indeed, she would have prepared her client to testify. But that is not

what the Assistant State’s Attorney did here. Here. the Assistant State's

Attomey leamed, from the judge, for the first time, that paternity had already

been established. Once the Assistant State's Attorney learned that paternity had

been established and a support order was in place, she should have tried to

enforce it. An effective attomey would have served the father’s employer with

a withholding order (45 C.F.R. §303.100), but that is not what the Assistant

State’s Attorney did here. Instead, the State's Attorney's Office failed to act

at all and waited 15 years before taking any action.

"A Study of the Cook County State's Attorney's Child Support Enforcement Division.

Chicago Council of Lawyers, October. 1995

9

The Assistant State's Attomey also learned that the court had modified the

$30 per month support order down to $15 per month in 1984. An effective

attomey would have initiated a review of the support order to determine if it

should be modified upwards given the father’s employment. 45 C.F.R.

§303.8. But that = et RO ag The

State’s Attorney's Office still has not taken action. |

Conspicuously absent from this argument is precisely what the State's

Attorney's Office did do over the course of the 13 years it failed to enforce

child support payments for Ms. Rodriguez and Richard. That is because in

[llinois, the State’s Attorney's Office uses a “team approach” to child support

enforcement. The State’s Attorney’s Office never knows at any point in time

exactly which attomey is handling a case; under the team approach, a different

attorney handles the case each time it requires legal action and no one Assistant

tate’s has term responsibility. .

rts it law firm or legal aid office would not operate in

this fashion. When a mother calls to speak with her lawyer, the office knows

who is working on her case. This is not what happens in the State's Attorney 's

Office. Indeed, many files have been lost in the State's Attomey’s Office

because no tracking system was in piace until quite recently. The Assistant

State’s Attorneys do not know themselves whether the State's Attorney's

Office will require them to appear in court on a particular day on behalf of a

client they have never met and about whom they know nothing.

B. Illinois’ Track Record Exemplifies The Need For A $1983 Remedy

Illinois’ track record for child support enforcement collections is abysmal.

Over the past decade, Dlinois has perpetually violated 42 U.S.C. §602(27).

From April 1, 1994 through March 31, 1995, the Department of Health and

Human Services audited Llinois’ Division of Child Support Enforcement

(DCSE). Out of the 251 cases HHS originally selected to include in the audit,

25% were excluded for a variety of reasons (e.g., insufficient information,

fathers who lived out of state, and fathers who were economically unable to

meet the enforcement orders, and cases that DCSE failed to closed). HHS then

looked only at those cases where DCSE possessed solid information, where

clients were cooperative and fathers were financially able to make support

payments. The results revealed that DCSE managed to establish Paternity and

Support orders in only 71% of the cases. DCSE Audit at 1. HHS explained

that this low efficiency rate reflected that DCSE failed to even attempt service

:

:

10

Of process in many cases and refer numerous cases to the State’s Attomey even

after they located the father. Additionally, HHS found that Llinois was only

able to meet the statutory requirements for review and adjustment of child

Support orders in a mere 64% of its cases. DCSE Audit at 1. Moreover, HHS

determined that DSCE fails to keep the adequate records required to provide

mothers and children efficient and effective service. DCSE Audit at 14. The

and that DCSE’s computer system was unable to track significant case events.

These statistics indicate that severe systemic problems exist in Llinois’ IV-D

agency. Because Illinois fails to accomplish the most basic tasks necessary to

Put mothers and their children in position to receive child support payments, it

only collects $2.30 for every $1 spent on the program. If Illinois managed to

collect at the national average, it could expect to recover at least $100 million

more in child support (as based on 1994 figures).

The results of HHS's audit incicate that the cases we see in the Mandel Legal

Aid Clinic are anything but anomalies. In fact, Linda LaFine’s case is a

perfect example of HHS's findings. For over 14 years, Dlinois’ IV-D agency

failed to collect a single child support payment for Mrs. LaFine and her

children. The agency failed to take appropriate steps to enforce the child

Support order, lost tract of the absent parent on several occasions and

subsequently failed to timely locate him, his assets, his employer or sources of

income. Even more troubling is that the IV-D agency knew that the father had

assets in excess of $100,000 and still failed, even when they had the father in

court, to take the proper legal action necessary - whether by pursuing contempt

proceedings. or simply opposing the granting of a continuance - to ensure that

the child support order was enforced. But most troubling is that the IV-D

agency maintains it has done nothing wrong and cannot be held accountable for

anything that has occurred in Mrs. LaFine’s case.

Burnadine Dunn's case represents yet another example of [linois’ poor

efficiency rate for establishing paternity and support orders. Here, [linois

deprived a mother and child of child support payments for 4 years by

needlessly dragging the case through the court system in an attempt to establish

paternity. This action was completely unnecessary since Ms. Dunn was

married to the child's father at the time of conception resulting in a

Presumption of paternity once the baby was born.

Then there is Petra Rivera's case. This case illustrates Dlinois’ failure to

Keep adequate records and communicate pertinent information to clients. In this

ll

case, the father moved for a downward modification of the child support order.

At that point he was already $2,007 in arrears to Ms. Rivera and owed the

state $746. The court granted the father’s request and entered an order below

Statutory guidelines. Ms. Rivera did not attend the modification hearing.

Neither [linois’ IV-D agency nor the State’s Attorney’s Office notified Ms.

Rivera that a modification hearing was scheduled or that she had a right to

appeal the decision. During the past year and a half, the father of Ms. Rivera's

children has been working off and on and Illinois has known when and where

he was working. At no point has Illinois served the father to begin the

Because Illinois has a poor computer system and is unable to track

significant events, Ria Cloutier and her children lost child support payments

when Illinois failed to pursue enforcement when Mr. Cloutier began receiving

unemployment benefits. Worse yet, after repeated phone calls, all initiated by

Ms. Cloutier to learn what she must do, if anything, to secure these payments,

an individual in DCSE told Mrs. Cloutier that there was nothing they could do

to enforce the order against Mr. Cloutier’s unemployment insurance benefits.

That was completely wrong information which reveals Illinois’ deliberate

indifference toward enforcing mothers’ and children’s right to child support

enforcement. The State merely had to comply with 45 C.F.R. §303.7 to

provide Mrs. Cloutier and her children with proper enforcement of the order.

The Project routinely sees these types of cases in our office because Illinois

fails to require even minimum competence or professional responsibility from

the lawyers it uses to pursue child support. [linois, through its policies and

practices, mismanages the legal resources at its disposal to the injury of the

rights of children and their mothers by failing to meet federal deadlines.

Il. Congress intended the requirements in Title IV-D and the

corresponding regulations to create enforceable rights under all

the opinions (majority and dissents) in the Maine vy. Thiboutout

line of cases .

A. Under the reasoning of all the Justices’ opinions who have written

on the subject of §1983, Title IV-D creates a right enforceable under

§1983.

Examination of all the opinions, addressing which statutes are enforceable

under § 1983, including all dissents, shows that Title IV-D creates enforceable

rights under every test this court has identified. Both the express language of

12

Tide [V-D and the corresponding federal regulations, as well as the legislative

history require recognition of a §1983 right under all the Justices’ views.

Congress’ recent enactment of the “Suter Override Bill’ underscores Congress’

Clear intent to create a §1983 right to the child support enforcement services

included in Title [V-D. Improving America’s Schools Act of 1994, Pub. L.

No. 103-382, 108 Stat. 3518 (1994), codified at 42 U.S.C. §1320(b)(13)

(1994). The new Welfare Reform Act makes clear that full compliance with

which was taken out of the statute. Personal Responsibility and Work

Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105

(1996). Even under the dissent in Maine vy. Thiboutout, Title [V-D is the type

of statute that §1983 is intended to enforce because it remedies unequal, class-

based lack of enforcement of child support laws in the states. Title [V-D meets

the legislative purposes of §1983 found in Monroe vy. Pape, 365 U.S. 167, 180

(1981). Title [V-D recognizes the civil right for women and children to obtain

child support through state enforcement.

1. Under the reasoning of Justice Brennan's majority opinion in Wright.

Title IV-D creates a §1983 cause of action.

In Wright v. Roanoke Redevelopment and Housing Auth, 479 U.S. 418

(1987), the Court elaborated the standards initially set in Pennhursi for

determining when a cause of action lies for statutory violations. These

standards have been followed by the majority in all subsequent cases until

Suter. Even in Suter. Chief Justice Rehnquist reaffirmed these principles while

adding another one for Spending Clause statutes. Suter vy. Amist M.. 112 S.

Ct. 1360, 1366 (1992). The Court in Wright recognized only two exceptions

when a §1983 right would be unavailable for enforcement of a federal statute:

(1) when the statute did not create enfo.ceable rights within the meaning of

$1983. Wright. 479 U.S. at 423 (citing Pennhurst State School and Hosp. v.

Haldermap. 451 U.S. 1, 19 (1980)); and (2) where “ ‘the remedial devices

provided . . . are sufficiently comprehensive to demonstrate congressional intent

to preclude the remedy of suits under §1983'" Id. at 424 (quoting Middlesex

County Sewerage Auth, vy, Nat'l Sea Clammers Ass'n. 453 U.S. 1, 20 (1981).

The first prong will be addressed in this part, and the second prong will be

analyzed in the next sectior of this brief.

The Wright court went on to define an enforceable right by relying on

Pennhurst to determine whether the statute provided mere findings or legislative

13

preferences (just a nudge in the preferred direction) or whether the provisions

were meant to be mandatory for the intended beneficiaries. Wright. 479 U.S.

at 422. In Wright. the Court found that the language of the Brooke

Amendment regarding rent ceilings in pubic housing projects was mandatory

and intended to benefit individual beneficiaries. Wright, 479 U.S. at 429-30.

Specifically, the Court recognized that tenants would be charged as rent “no

more and no less than 30% of their income.” Id, at 429-30.

The Court also concluded that the language at issue was not “too vague and

amorphous” to be judicially enforceable and binding. Id. at 4¥-32. The

regulations provided that a “reasonable” amount of utilities was includable in

remt. Since the regulations “specifically set out guidelines that the PHAs (state

agents} were to follow in establishing utility allowances, and they require notice

to tenants and an opportunity to comment on proposed allowances,” the

concept of reasonable utilities was “sufficiently specific and definite” so as to

be judicially enforceable. Id at 431-32. In the instant case, Title [V-D

standards are likewise concrete and not “vague and unenforceable.” Indeed,

Title IV-D regulations are even more specific and enforceable than those in

Wright. A judge has only to glance at a calendar to determine if a state agency

judge might have to determine whether the [V-D agency did “[{w]ithin 90

calendar days of locating the alleged father, . . . establish an order for support

or complete service of process necessary to commence proceedings to establish

2 support order . . . (or document unsuccessful attempts to serve process, in

accordance with the State's guidelines defining diligent efforts... .)” 45

C.F.R. §303.4 (d). As the recent audit report found, Dlinois’ lack of the

federally mandated case management system prevents [linois from determining

if it has even met deadlines like this." The opinion in Wright places special

emphasis on the presence of guidelines in the statutory scheme. Here, we do

not have mere guidelines. Title [V-D contains specific, numerical deadlines.

2. Under the reasoning of Justice O'Connor's dissenting opinion ip

Wright, Tide IV-D creates a §1983 cause of action.

Under Justice O'Connor's dissenting opinion in Wright. Title [V-D also

would create a §1983 cause of action (Justice O"Connor’s opinion was joined

“Office of Child Support Enforcement. U S. Department of Health and Human Services.

Report No. 0-95-PR/PM. Program Results Performance Measurements Audit. State of

Dhnows 2 (September 16. 1996).

14

by Chief Justice Rehnquist, Justice Powell and Justice Scalia). Wright. 479

U.S. at 432 (O'Connor, J., dissenting). Justice O'Connor adopts the majority's

test, but disagrees with its application. The dissenters look only to the

legislative action and history to determine whether Congress meant to establish

mandatory duties to individuals. Justice O'Connor's dissent centered around

her position that “ ‘the key to the inquiry is the intent of the Legislature’ " as

distinguished from regulations adopted by the Secretary. Id. at 433 (quoting

Sea Clammers, 453 U.S. at 13). Under this approach, the Court first examines

the statutory language “to determine if it is ‘phrased in terms of the persons

benefited’ " and is written “in mandatory rather than precatory terms.” Id

(quoting Cannon vy. University of Chicago, 441 U.S. 677, 692 n. 13 (1979)).

Title [V-D qualifies under Justice O'Connor's analysis in Wright. Section

652 of Title 42 of the United States Code lists the duties of the Secretary and

is replete with mandatory language, prefacing each duty with the word “shall”

Secretary “shall review and approve state plans; 42 U.S.C. §652(a)(3); “shall

evaluate the implementation of state programs. . . [and] conduct such audits of

state programs . . . as may be necessary to ensure their conformity with the

requirements of this part; 42 U.S.C. §652 (a)(4); and to ensure compliance

with “(tjhe standards required by subsection (a)(1) . . . shall include standards

establishing time periods.” 42 U.S.C. §652(h). Congress, in tum, required

that the State plan “must provide that the state will comply with such other

requirements and standards as the Secretary determines to be necessary to the

establishment of an effective program for locating absent parents, establishing

paternity, obtaining support orders. and collecting support payments.” 42.

U.S.C. §654(13). Congress thus explicitly bound the Secretary to enforce state

compliance with the Title IV-D and bound the states, after the “Suter Override

Bill.” to obey and enforce the tests made of the state plan. Justice O"Connor

concluded that Congress did not create an enforceable §1983 right in the

Brooke Amendment because the statutory language does not explicitly create

a right to utilities in rent. Wright. 479 U.S. at 433-34. The dissenters believed

that the legislative history showed that Congress considered and rejected a

proposal to create an enforceable right to “reasonable utilities.” Id. at 434.

In Wright. Justice O’Connor evinced the concern that “once it has been found

that a statute creates some enforceable right. any regulation adopted within the

purview of the statute creates rights enforceable in federal courts, regardless

of whether Congress or the promulgating agency ever contemplates such a

15

result.” Jd, at 438. Here, Congress clearly contemplates that mothers and

children have nghts to prompt child support enforcement services. Congress

specifically required that state child support enforcement program standards

within which a state must accept and respond to requests . . . for actions in

establishing and enforcing support orders, including requests to locate absent

parents, establish paternity, and initiate proceedings to establish and collect

child support awards. 42 U.S.C. §652(h). Here, unlike the situation in

Wright. where Justice O'Connor determined it to be unclear whether utilities

were included in rent, Congress laid out in detail the services that state agencies

must perform in specified time periods. HHS regulations show that they have

not been “unleashed from any connection to congressional intent,” as Justice

O'Connor determined to be the case in Wright’ Wright. 479 U.S. at 438.

Thus, here, not only was Congress explicit as to which services IV-D

recipients had rights to, but HHS regulations reiterated that same intent.

3. Under the reasoning of Justice Stevens’ majority opinion in Golden State.

Title IV-D creates a §1983 cause of action.

Writing for the majority in Golden State Transit v. City of Los Angeles. 493

U.S. 103 (1989), Justice Stevens applied the two-part test in Wright. (Also

see Wright. 479 U.S. at 448-49, Golden State, 493 U.S. at 106). Justice

Stevens noted that in determining whether a right exists, the Court has “asked

whether the provision in question was ‘intend[ed] to benefit’ the putative

plaintiff.” Golden State, 493 U.S. at 106 (quoting Wright. 479 U.S. at 430).

Justice Stevens relied on the same position in his dissent in Suter.

4. Under the reasoning of Justice Kennedy's dissenting opinion in Golden

State. Tide IV-D creates a §1983 cause of action.

Justice Kennedy concluded that the NLRA did not create a §1983 remedy

because “the only wrong committed by the state or its local entities is

musapprehending the precise location of the boundaries between state and

federal power.” Golden State. 493 U.S. at 114 (Kennedy, J., dissenting). In

the instant case, Congress’ language “secures” Title IV-D individual rights.

Title IV-D gives custodial parents and children rights to child support

enforcement from the state. The individual rights-creating language of the new

Welfare Reform Act is especially illustrative, requiring that a state will provide

child support enforcement services to “each child” already receiving certain

16

state services and “any other child” with an application on file. The Personal

Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.

104-93, 110 Stat. 2105, §301(A) (1996). Further, §301(B) extends coverage

to “the custodial parent of such a child.” §301(B). Thus, any child and their

custodial parent has a right to the state's child support enforcement services.

Moreover, there is no preemption issue at stake here as had existed in Golden

State. Title IV-D itself creates all the rights.

5. Under the reasoning of Justice Brennan's majority opinion in Wilder,

Title [V-D creates a §1983 cause of action.

In writing for the majority in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498

(1990), Justice Brennan applied the Wright test in holding that healthcare

providers had a right, secured under § 1983, to payments based on reasonable

and adequate rates. Justice Brennan cites the provisions “establish{ment) [of]

a system for reimbursement of providers” and its “phras[ing) in terms of

benefiting healthcare providers” as support for his conclusion that there was

“litte doubt” that healthcare providers were the intended beneficiaries of the

statutory scheme. Wilder, 496 U.S. at 510. Likewise, Tide IV-D establishes

a system for providing child support enforcement services to mothers and

children and is phrased in terms clearly benefiting mothers and children.

6. Under the reasoning of Chief Justice Rehnquist's dissenting opinion in

Wilder, Title [V-D creates a §1983 cause of action.

Writing for the dissent in Wilder, Chief Justice Rehnquist concluded that a

§1983 remedy was not available under the Boren Amendment to the Medicaid

Act. Wilder. 496 U.S. at 524 (Rehnquist, J., dissenting). In reaching his

conclusion, the Chief Justice worked from the premise. as the Court had done

in Wright. that “[{flor a §1983 remedy to lie, the language used by Congress

must confer identifiable rights.” Id. at 526. In finding that medical providers

structural evidence (the provision at issue was the thirteenth listed requirement

for in the State plan provision without clearly conferring any substantive rights

on the providers) and the absence of “any express ‘focus’ on the providers

{plaintiffs} as the beneficiary class” indicated that Congress had not intended

to confer such rights to the class of providers. Id. at 527.

In Wilder. patients. not providers, were the intended beneficiaries of the

Medicaid Act. Here. the statute is explicit that the intended beneficiary class

17

the Authorization of Appropriations

is mothers and children. In fact, : | section,

42 U.S.C. §651., places “express focus” on mothers and children. Congress

vppropriated money “{f}or the purpose of enforcing Suppor O°NBA e

what

a In 1988, issatisfied with state performance, Congress enacted

became entitled “Prompt State response to requests

wane eo een” USC §652(h) (1996). Under oe

i periods within which a State must accept

for assistance in establishing and enforcing ‘ sae

ie. including requests to locate absent parents, establish pated Ot

| . 2

§654(4), (6) (1995). thus underscored that a nar

under Title TV-A and“any other child” who has an APPLICA E esti

taper ee anand agar L. No. 104-193, 110 Stat.

, . ‘ ; ‘ ‘ the

08 088 (which replaces 42 U.S.C. §654(4)). paeere om

Medicaid Act, Congress has expressed clearly that the

of Title IV-D were mothers and children.

7” i te, he would

enforcement through §1983 of the process pee oo

allow $1983 to be used to enforce ihe Prossts | Wilder, | ee os

left the stares with discretion to develop 4 — ony atari

524. However, Chief Justice Rehnquist determined | =

opinion, “every $1983 action hereafter brought DY Prowl at

seek the substirusion of a rate system prefercl saparsigezue

ystem chosen b the State.” Id. © orders entered 7

s earrore will require the States to adopt reimbursement rate Systems "TSF

‘com those Congress expressly required them to adopt - « ld

——

18

Here, on the other hand, Congress did not delegate this authority to the states.

The federal government retained control over the operation of state [V-D

programs. In fact, dissatisfied with the states performance under more flexible

standards, Congress instructed the Secretary to promulgate a system of

absolute deadlines. Since Congress has chosen not to allocate its authority as

it did in the Medicaid Act at issue in Wilder, the Chief Justice's concern that

courts would be displacing congressionally enacted law with their own law is

inapplicable. Rather, by enforcing the deadlines authorized by Congress and

promulgated by the Secretary, the courts will be giving force to congressionally

enacted law.

Moreover, Chief Justice Rehnquist concluded in Wilder that while the

provider plaintiffs did not have a right to have anyone outside the state agency

decide if they are receiving a reasonable rate, they may have a right to “bring

a §1983 action to require that rates be set according to that process”’ that the

federal government left to the states to develop. Id. at 527. Likewise, [IV-D

families merely claim that they have a right to the process that Title [V-D and

the regulations create. IV-D families do not claim that they have a right to

child support enforcement, which under the Chief Justice’s analysis, the Wilder

majority would hold here; rather, ['V-D families are claiming that they have a

right to the process of state provision of prompt child support enforcement

services.

Finally, unlike the rights at issue in Wilder, denying a §1983 remedy would

render Title IV-D and particularly 42 U.S.C. §652 (h) a “dead letter.” In

Wilder, the Chief Justice alluded to the “Secretary's oversight” as providing

some relief. Id, at 528. In this case, the Secretary has never imposed a single

sanction on a noncomplying state agency, despite a history of failure on the

part of state child support enforcement programs. Moreover, in Wilder, as

Chief Justice Rehnquist noted, the Boren Amendment changed the statutory

scheme to “allow the States more latitude in establishing Medicaid

reimbursement rates.” Id, Here, Congress removed any latitude previously

present in the statutory scheme by instructing the Secretary to create deadlines.

42 U.S.C. §652 (1996). To now refuse a §1983 remedy to IV-D beneficiaries

would thus contradict clear congressional intent and render Title [V-D a “dead

letter”, leaving federal time limits without any power to enforce them.

7. Under the reasoning of Chief Justice Rehnquist's majority opinion_ip

Suter, Title IV-D creates a §1983 cause of action.

19

In Suter. the majority ruled that the Adoption Assistance and Child Welfare

Act (the “Adoption Act”) did not create enforceable rights under §1983. Suter

yv. Artist M., 503 U.S. 347 (1992). The Court found that the Adoption Act

only required the State to file a plan that sets forth the L6 listed features but did

not require actual compliance with the plan. Id. at 357. In explaining why the

Adoption Act does not require more than a proper written plan, Justice

Rehnquist wrote that “(t]he regulations promulgated by the Secretary to

enforce the Adoption Act do not evidence a view that §671(a) places any

requirement for state receipt of federal funds other than the requirement that the

State submit a plan to be approved by the Secretary . . . What is significant is

that the regulations are not specific and do not provide notice to the States that

failure to do anything other than submit a plan with the requisite features, to

ve approved by the Secretary, is a further condition on the receipt of funds

from the Federal Government.” Id, at 361-62.

Unlike the provisions in Suter which gave no guidance to measure

“reasonable efforts”, Title 'V-D imposes specific, numerical deadlines on the

states. Importantly, this direction to the secretary is in a different section of

Title IV-D than the section setting out the State requirements. Title ['V-D

requires that States take specific steps in order to establish paternity and

enforce child support. To obtain approval and ultimately federal funding, a

State must not merely submit a State plan under [V-D, but must also agree to

comply with Title IV-D and its corresponding regulations. 42 U.S.C. §652(13)

provides: “‘A state plan must provide that the state will comply with such other

requirements and standards as the Secretary determines to be necessary.” In

the contract annually entered into between each state and HHS, the Governor

of each state must sign a statement again agreeing to comply with Title IV-D.’

This certification appears on the signature page itself. Moreover, the

requirement that the Governor certify compliance each fiscal year before

release of federal funds underscores that Congress did not merely require states

to make assurances that they would comply. Rather, States must actually

comply on a continuing basis to receive federal funds. If compliance were just

a goal and not a requirement, Congress would not have required annual

"PL 104-193 Section 402 (a) provides: “[{T]he term ‘eligible State’ means, with respect to a

fiscal year, a State that . . . has submitted to the Secretary a plan thai the Secretary has found

includes the following:

(2)-A certification by the chief executive officer of the State that, dunng the fiscal year, the

State wul operate a chid support enforcement program under the State plan approved under

part D.”

—

20

certification.

Indeed, Petitioner's argument suggests that Title IV-D is too burdensome for

anyone, including reluctant fathers, to really expect that Title [V-D provisions

will be obeyed. The States argue that compliance is overly burdensome on

State financial and legal resources. Such an argument is akin to proposing that

public defenders and prosecutors in the criminal context should not be held to

any level of professional responsibility because doing so would be financially

burdensome on the state. Such an argument is disingenuous, especially in the

case of Title IV-D. First, the problem is not inadequate funding or too many

cases, but poor management. Some states do much better. Pennsylvania

collects $9.09 for every dollar expended. Michigan collects $8.43, while

Illinois collected $2.36 and Arizona collected only $1.79 per dollar expended.

States may opt not to participate in Title IV-D, participation in Title IV-D is

not mandatory. Petitioner's argument that States’ rights would be in danger if

the Court were to allow a §1983 right is misleading because the States can

simply opt out of Title IV-D if they object to its terms. In truth, what

Petitioner is actually arguing is that this Court should find that Title IV-D

places no burdens whatsoever on state actors (especially managers at the

State's Attorney's Offices and legal administrators in the IV-D agency).

B. The recent passage of the Suter Override Bill underscores Congress’

intent to create enforceable rights to the services included in Title

IV-D.

That Title IV-D’s requirements are binding is particularly clear given

Congress recent enactment of what is commonly known as the “Suter override

bill.’ Under the Act, states cannot comply by simply submitting a plan with

the correct boilerplate language. The terms of the Plan must be obeyed. It is

as if the words (the “State plan. . . must provide that") were excised from the

text of Title IV-D and the remaining language (‘The State will comply with

such other requirements and standards as the Secretary determine to be

necessary. . .”, 42 U.S.C. § 654 (13)) is enforced. The states knew that they

were agreeing to Obey federal regulations setting time limits, not just submitting

a written statement in the Plan agreeing to comply.

The bill provides: “In an action brought to enforce a provision of the Social

‘Improving America’s Schools Act of 1994. Pub. L. No. 103-382, 102 Stat. 5518 (1994),

codified in 42 U.S.C. §1320(b)(13) (1994).

21

Security Act, such provision is not to be deemed unenforceable because of its

inclusion in a section of the Act requiring a State plan or specifying the

required contents of a State plan. This section is not inended to limit or

expand the grounds for determining the availability of private actions to enforce

State plan requirements other than by overturning any such grounds applied in

Suter but not applied in prior Supreme Court decisions respecting such

bility...” Id

"aca history makes it clear that the Suter Amendment, 42 U.S.C.

§ 1320 (a)(2), is designed to ensure that individuals who have been injured by

a State’s failure to comply with the federal mandates of the State plan titles of

the Social Security Act are entitled to seek redress in the federal courts to the

extent that they were able to prior to the decision in Suter. The House

Committee reported that the Suter amendment is designed to achieve three

results. It “(1) responds to the recent Supreme Court decision in Suter, which

dramatically limited the ability of program beneficiaries to enforce the State

plan titles of the Social Security Act; (2) preserves private causes of action as

they existed before the Suter decision; and (3) reaffirms that the State plan

titles of the Social Security Act impose binding obligations on participating

States to comply with the requirements of the Act.” See Conference Report on

H.R. 11, 102nd Cong. 2nd Sess. 138 Cong. Rec. H. 12552 (October 5, 1992).

Even those who expressed reservations concerning the Suter amendment

recognized that it allows intended beneficiaries of the Social Security Act to sue

a State for its failure to provide the benefits that the plan promises and that the

State agreed to fulfill in exchange for federal funds. For example,

Representative Archer had reservations about the At because of his

understanding that the amendment would permit the right to sue if any State

plan requirement is not actually met. See 102nd Cong. 2nd Sess., 138 Cong.

Rec. H. 5950 (July 2, 1992). This Statement demonstrates that even those in

Congress who expressed opposition to the Suter amendment understood that

its intention was to permit beneficiaries of the Social Security Act a broader

would allow to sue participating states.

cae of the courts that have addressed the issue have read the

amendment to reject the Supreme Court's reasoning in Suter and to require

courts to return to the pre-Suter approach when deciding whether to recognize

a private cause of action to enforce provisions of the Social Security Act other

than §671(a)(15). See Marisol A. v, Giuliani. 929 F. Supp. 662 pean

1996): Harris v. James, 883 F. Supp. 1511, 1520 (M.D. Ala. 1995); Jeanne

22

B. ex rel. Blondis v. Thompson. 877 F. Supp. 1268, 1285 (E.D. Wis. 1995).

In Jeanine B.. the Court explained what would appear to be the common

understanding of the amendment's effect:

the amendment overrules the general theory in Suter that the only private

night of actions available under a statute requiring a state plan is an action

against the state for not having that plan. Instead the previous tests in

Wilder and Pennhurst apply to the question of whether or not the

particulars of a state plan can be enforced by its intended beneficiaries.

Id. at 1283.

C. Title IV-D is enforceable under the Dissent in Maine v. Thiboutoui.

In Maine v. Thiboutout, 448 U.S. 1, 19 (1980) (Powell, J. dissenting),

Justice Powell dissented in an opinion in which then Justice Rehnquist joined,

from the Court's conclusion that federal statutes other than civil rights statutes

may be enforced under § 1983. The opinion recognized that a major purpose

of the Reconstruction Era Civil Rights Acts “was to involve the federal

judiciary in the effort to exert federal control over state offices who refused to

enforce the law.” Id at 33. Here, Congress reacted to the failure of the states

to enforce their child support laws by passing Title IV-D and creating a

massive federal/state program. Indeed, IV-D was adopted in response to a

violation of equal rights of a class overwhelmingly composed of women and

children. The class of men were the beneficiaries of unequal government

enforcement of the laws. Title IV-D changed many state laws that unduly

discriminated against mothers and children and in favor of reluctant fathers.

(Indeed. some fathers even became proud “deadbeat dads” for evading

collection efforts).

Later. Congress found the performance of the states to be inadequate and

ordered the Secretary of the Department of Health and Human Services to

adopt standards setting deadlines for performing various child support

functions in each case. Congress acted because of state failures to enforce

State family law in a prompt fashion. Justice Powell's reliance on Monroe y,

Pape shows that even under his dissent in Maine, Title IV-D is enforceable

under §1983. After all, Monroe found that §1983 was passed “to afford a

federal right in federal courts because, by reason of prejudice, passion, neglect,

intolerance or otherwise, state laws might not be enforced and the claims of

citizens to the enjoyment of rights, privileges and immunities guaranteed by the

fourteenth amendment might be denied by the state agencies." Monroe, 365

23

US.. 167. 180 (1961). Titie IV-D was passed for this very reason. Monroe

also found that §1983 was adopted because state officials were unable or

unwilling to enforce a state law.

D. Title IV-D focuses unmistakably on custodial parents and their

children as beneficiaries of the federal funding.

First, there can be no doubt that Title IV-D is intended to benefit families

with children. The first section of Title IV-D includes among its purposes for

enactment “enforcing the support obligations owed by absent parents. . . and

assuring that assistance in obtaining support will be available under this part

to all children (whether or not eligible for [AFDC] for whom such assistance

is requested” 42 U.S.C. §651.

Amici in support of the Petitioner (hereinafter “ Amici”) assert that children

and custodial parents are not the “especial beneficiaries” of the services

mandated under Title TV-D as required by the Wright-Wilder test for

establishing “a right under federal law” enforceable under §1983."' This

argument has been rejected by every Circuit which has considered the issue

save one."? It is refuted by the statutory language, legislative history, the policy

statements of the federal Office of Child Support Enforcement and a common

sense view of the intended operation of Tide IV-D.

Amici argue that Title IV-D is aimed at reduction and avoidance of welfare

costs but then insist on the non-sequitur that children and their custodial

parents cannot be intended to be benefitted thereby. However, recoupment of

welfare benefits and avoidance of welfare enrollment can only be accomplished

if children receive effective child support services. To achieve the goals of the

Title IV-D. the Petitioner and her fellow state IV-D directors must produce

actual results--the collection of child support. The Respondent class of

custodial parents here have sued for timely services and are fully aware that

support collections may not result in every Case. However, neither the

congressionally desired benefits to children who avoid the welfare system and

who may be lifted out of poverty, nor reduction in welfare costs, can be

achieved if Petitioner does not provide the timely services to each family as

State's bref at 6-12: Amicus brief of the American Public Welfare Association et al, at 27

n. 70: DA's brief at 25-26. Petitioner does not make this argument.

“See Albiston v. Maine Comm'n of Human Services. 7 F.3d 258 (1st Cir. 1983); Howe v.

Ellenbacker. 8 F.3d 1258 (8th Cir. 1993); Carel v. Howser, 923 F.2d 1208 (6th Cir. 1991);

and Freestone: but see Wehunt v. Ledbetter. 875 F.2d 1558 (11th Cur. 1989).

24

required by federal law.

The Secretary requires specific action in compliance with the deadlines at

every critical step in providing child support services. For example, the first

step is often the location of a noncustodial parent or putative father “For all

cases... the IV-D agency must attempt to locate all absent parents or sources

of income and/or assets when location is necessary to take necessary action.

Under this standard the IV-D agency must [u]se the appropriate location

sources. . ."" 45 C.F.R. §303.3(b) (1996) (emphasis added). If location efforts

are unsuccessful, the IV-D agency must “([rjepeat the location attempts. . .

citer quarterty or immediately upon receipt of new information.” Jd. “For all

cases” is used in most of the 45 C.F.R., Part 303 regulations.

Delays and denials of services constitute violations of specific regulations

not dissatisfaction with timely support services which were unsuccessful.

Petitioner cannot blame the noncustodial parent for the agency's repeated loss

of files or its failure to act on new location information provided by a custodial

parent to establish or enforce an order for support (45 C.F.R. §§303.4(d)

303.6(c)(2)); its failure to act when a wage withholding payment is not received

(45 C.F.R. §§303.6(a) and (b)); its failure to attempt to effectuate a

withholding order when obligated parent becomes delinquent (45 C.F ne

303.6(c), 303.100) or its failure to timely and accurately distribute sepport it

has collected (45 C.F.R. §§ 303.32, 302.51). Petitioner has never contended

that these were unusual or isolated errors and the record on summary judgment

demonstrates that the Petitioner systematically deprived children of these

services. See Freestone v. Cowan, 68 F. 3d 1141, 1144-45 (9th Cir. 1995)

Moreover. DCSE specifically rejected IV-D agency assertions that the

should not be held to specific tasks and time limits and determined that rnd

requirements are realistic and necessary for the states to achieve. DCSE stated:

Given the extent of comments about how many different entities are

involved in IV-D process, lack of adequate case management processes in

many IV-D programs and delays in providing services, we believe that

Setting specific time frames for each step of the process will ensure States

provide necessary services on a timely basis.

54 Fed. Reg. 32284, 32290 (Aug. 4, 1989),

The regulations are very Clear that children would and should benefit from the

services required of the IV-D agencies.

25

III. Recognition by this Court of a §1983 cause of action will not result

in a flood of the federal courts.

The States Amici claim that recognition by the Court of a §1983 cause of

action for child support enforcement will flood the federal courts. This is flatly

untrue. State courts, not federal courts, will hear the lion’s share of these

§1983 suits. Furthermore, state courts themselves will not be flooded by

recognition of a §1983 cause of action. At the time a §1983 violation arises,

the parties will already be or will eventually be in state court on the underlying

child support case. A §1983 suit can simply be consolidated into that core

child support suit. The practical realities are such that the courts will not be

overrun. Legal aid lawyers representing mothers have neither the money, time

nor staff to contribute more than a trickle to court dockets. This Court's

recognition of a §1983 action will give families hope and empower women to

regain control of their lives. Indeed, there will need to be some class actions

to correct systemic failures but there will be no flood of litigation.

A. IV-D federal enforcement is deficient on paper and a ‘dead letter’

in practice.

In practice, states have never been held to the funding conditions imposed by

Title IV-D. No state has ever been penalized Ilinois, for example, is woefully

out of compliance as recently as the audit that was just released in September,

1996 shows. In Suter, Chief Justice Rehnquist recognized that §1983 was

important for private plaintiffs to keep statutory provisions from being

rendered “a dead letter.” Suter, 503 U.S. at 360-61.

Title IV-D is a “dead letter” that requires §1983 enforcement. Although

HHS theoretically has the power to impose sanctions or reduce state funding,

the Secretary has never seen fit to use its power despite extensive state

violations. The audit/penalty provision allows states to pass in and out of

substantial compliance without actually improving the operation of their IV-D

programs, much less obtaining child support within the mandatory deadlines.

There are no remedies whatsoever for individual custodial parents who have

waited years to obtain child support enforcement services more quickly.

Enforcement of Title IV-D rights is a “dead letter.”

B. Illinois’ record with HHS demonstrates the failure of Title IV-D.

[linois’ record is illustrative. Dlinois has a record of repeated noncompliance

throughout the past decade, without a single reduction in funding. Illinois

26

shows how the states fail to meet the requirements set by the federal

government. The Department of Health and Human Services recently

conducted an audit of the Ilinois Division of Child Support Enforcement from

April |, 1994 through March 31, 1995. The audit first excluded about 25%

of the cases that had problems (insufficient information, father’s who lived out

of state, and fathers who were economically unable to meet the enforcement

orders). The audit then looked at only those cases where the Illinois’ DCSE

had solid information, cooperative clients, and fathers who were financially

able to make support payments. The audit determined that Dlinois’ DCSE

failed to establish paternity and support orders on time in 29% of these cases.

The audit explained that this low efficiency rate reflected the failure of Dlinois’

DCSE to even attempt service of process in many cases and the failure to refer

numerous Cases to the State’s Attorney even after the father was located. The

audit also determined that Illinois’ DCSE failed to meet the statutory

requirements for review and adjustment of child support orders in 36% of the

cases. Furthermore, the audit determined that inadequate records were

maintained for most cases, and the computer system was unable to track

significant case events.

Iinois for the States’ Amici takes the position that it is not obligated to

enforce federal child support deadlines on an individual basis. This is not

Surprising since Illinois has also opposed every effort to use state

administrative or judicial remedies to enforce the federal time limits. At every

effort in state courts and agencies, the [inois Attorney General asserts there

are NO state-created remedies to enforce the federal deadlines.

In response to an avalanche of complaints, the Minois Legislature established

an administrative accountability process in which individuals have a right to

discuss Dlinois’ failures in their individual cases and prospective actions to be

taken in the future. But the Attorney General takes the position that these

Proceedings are only informational and not binding on the State. At most

conferences the issue is the State's failure to meet federal deadlines. yet the

Illinois Department of Public Aid refuses to discuss past failures and refuses

to set deadlines to which it must adhere.

Without § 1983, custodial parents cannot even obtain an explanation from the

State's Attomey's Office about delays in their court cases. Although the

State's Attorney is a contracting party receiving funds under IV-D and is

defined as part of the Child Support Enforcement Unit which must provide an

explanation upon the request of the custodial parent under Illinois law, the

27

Office refuses to do so. Also, it rebuffs requests that Assistant State's

Attorneys appear at the conference which custodial parents can request when

they do not receive a satisfactory explanation.

When mothers have turned to the state courts to force the State's Attorney's

Office to attend these conferences, Dlinois has escalated their stance from one

of denial to active coercion. In court, the States’ Attorney Office, who is under

contract with Dlinois to appear in court, moves to withdraw from the case.

This is a blatant attempt by [linois to deny its child support enforcement

services to complaining mothers. Through this tactic, Illinois has placed

mothers and children in an impossible position. If the mothers bend to the will

of Dlinois, they are unlikely to obtain child support anytime in the near future.

If they continue to push for compliance, Dlinois will remove the services which

which are vital in many cases to obtaining child support. Fortunately, state

courts have not allowed the State’s Attorney’s Office to withdraw from these

cases.

C. Most §1983 litigants will turn to state, not federal courts to pursue

their claims.

Since State courts have jurisdiction over official capacity actions for

prospective relief, most § 1983 cases will be brought in state, not federal, court.

State courts have concurrent jurisdiction over suits brought under federal law.

Maine v. Thiboutout, 448 U.S. 1, 3, mn. 1 (1980); Martinez v. California, 444

U.S. 277, 283 n. 7 (1980). Further, state court must hear the same type of

claims, Testa v. Katt. 330 U.S. 386, 393-94 (1947), and claims between

similarly situated litigants, Howlett v. Rose. 496 U.S. 356, 380-81 (1990). as

those suits under state and federal law that the state court does in fact entertain.

State courts are thus obligated to entertain official-capacity suits for

prospective injunctive relief. Will vy. Michigan Dep't. of State Police, 491 U.S.

58, 71 n.10 (1989) (quoting Kentucky v. Graham, 473 U. S. 159, 167 n. 14

(1985)). Because the | 1th Amendment does not apply to suits for prospective

relief, state courts will have jurisdiction over these §1983 suits.

§ 1983 claims against state IV-D officials will most likely be consolidated

with the core child support litigation already in state court. Since most child

support cases end up in the state courts, there will be few “unattached” §1983

suits. Under the present structure, a mother has a continuing action against a

father from the moment a patemity suit is filed in state court until that father’s

nal eS ae) —

28

child reaches the age of majority. The presiding judge will have the power to

consolidate the §1983 suit into the paternity suit. Even if a §1983 violation

occurs before a child support suit is filed, state courts can consolidate the

§ 1983 action into the support suit when it eventually ends up in court. Though

some individuals may choose to bring §1983 actions in federal court, where the

defenses may be different from those available in state court, at this stage the

Court need not decide the scope of any defenses. The only issue is whether a

§ 1983 cause of action to available.

D. The remedies provided under IV-D are not sufficient to override

Contrary to Petitioner's argument, Seminole Tribe v. Florida devs not

prohibit Respondents from suing a state officer in her official capacity. The

Seminole Tribe Court declared that a “carefully crafted and intricate remedial

scheme” evidences a Congressional intent to maintain state sovereign immunity

and foreclose Ex parte Young access to the courts. See also Ex Parte Young.

209 U.S. 123 (1988). Seminole Tribe, 116 S. Ct. 1114, 1132 (1996). The

Court's opinion in Seminole Tribe is inapplicable because Title IV-D is devoid

of any “remedial scheme” whatsoever accessible to the beneficiaries of IV-D.

Petitioner claims that the audit and penalty scheme in Title IV-D meets the

“carefully crafted and intricate remedial scheme” standard announced in

Seminole Tribe. In Seminole Tribe. the remedial scheme was carefully crafted

to provide a remedy to the beneficiaries, the Indian tribes, to displace the

remedies under §1983. Here, the beneficiaries, the mothers and children, have

no remedy - the audit is initiated by the Secretary of HHS and evaluates overall

substantial compliance, at the 75% level, and not performance on each

individual case.

E. Title 1V-D Does Not Provide a Comprehensive Enforcement Scheme

Foreclosing a Right of Action under §1983.

A statutory remedial scheme that provides no remedy for the violation of

nghts created in favor of one of the statute's two express beneficiaries certainly

cannot be considered, by any stretch of reason, to be sufficiently

comprehensive to foreclosure of §1983 actions. Nevertheless, Petitioner argues

that the remedial scheme is “sufficiently comprehensive” so as to foreclose a

Cause of action under §1983, even though the scheme leaves the statute's

express beneficiaries without any method. means or avenue for enforcing rights

granted in mandatory terms under the plain language of the statute. However,

29

Petitioner's argument is both contrary to precedent and illogical.

pence ar Jencieestn se esteem eat tr ena

in Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n. S.

| (1981). However, the remedial scheme addressed in Sea Clammers consisted

of elaborate enforcement provisions that included explicit civil and criminal

penalties for violation of the statute and granted any interested party the ability

to seek judicial review of any administrative determination. Sea Clammers,

435 US. at 13-14. In contrast, the limited remedial scheme provided by Title

IV-D contains no such comprehensive or elaborate enforcement provisions

from which a valid inference that Congress intended to foreclose § 1983 actions

can be drawn. Title ['V-D provides no civil or criminal penalties for violation

of its provisions or of the federal regulations promulgated under it. In truth.

Title IV-D’s limited remedial scheme provides only financial disincentives, up

to a maximum 5% reduction in federal matching funds, to be levied by the

Secretary of Health and Human Services to deter the continued violation of

Title IV-D provisions. According to The Amici Curiae Brief of the State of

Iinois, such financial penalties have never been levied against any of the

several states (Amici Curiae Brief of the State of Ilinois at foomote 8) even

though the “actual child support collection rate nationally is only 18%.

Petitioner's Brief on the Merits at 19. How can such a remedial scheme be

as ive or effective?

gy nen in gt nbs 0 comprehensive

enforcement schemes that preclude or foreclose an action under §1983. The

“sufficiently comprehensive” exception to the general rule that plaintiffs may

bring § 1983 causes of action for violations of federal statutes has been viewed

as a narrow one. Wnght v. City of Roanoke Redevelopment and Housing

Auth. 479 U.S. 418, 423-24 (1987). Since the Sea Clammers decision, only

one other case -- Smith y. Robinson. 486 U.S. 992 (1984) -- has held om a

statute itself provided a remedial scheme “sufficiently comprehensive” to

foreclose an action under §1983. A distinguishing feature of these two

remedial schemes found “sufficiently comprehensive" to preclude actions under

§ 1983 is that both of these schemes included express private remedies that

allow citizens to compel state action when the state violates the federal

statut irements.

In seems Ga Court squarely rejected the argument that enforcement

schemes are “sufficiently comprehensive” so as to foreclose §1983 actions,

when those schemes provide solely for detailed audits and limited fiscal

30

penalties to deter violations of the statute and fail to include express private

remedies or to specifically authorize parties to seek judicial review of

administrative determinations. In Wright. the Court also rejected the argument

that the existence of other possible state court remedies in favor of the plaintiff

would bar §1983 causes of action. The Wright Court reasoned that the

existence of a state court remedy is hardly a sufficient reason to bar an action

under §1983, which was explicitly adopted for the purpose of enforcing federal

rights. Wright, 479 U.S. at 429.

Further, the Court has repeatedly held that administrative enforcement

schemes, such as the one included in Title IV-D must be presumed to parallel

the private §1983 action, rather than occupy the same ground. In Rasodo y.

Wyman. 397 U.S. 397 (1970), the Court held that the Secretary's authority to

withhold funds does not preclude private actions to enforce individual rights

under Title IV-D. The court stated, “{wJe are most reluctant to assume

Congress has closed the avenue of effective judicial review to those individuals

most directly affected by the administration of its program” Id. Finally, in

Wright. 479 U.S. at 428 the Court held that the Secretary's authority to audit,

enforce annual contributions contracts, and cut off federal funds are

generalized powers that are insufficient to indicate a congressional intention to

foreclose §1983 remedies.

CONCLUSION

For the reasons set forth in this brief, the Anti-Poverty Project of the Edwin

F. Mandel Legal Aid Clinic of the University of Chicago Law School, as

Amicus Curiae, requests this court to affirm the judgment of the Court of

Respectfully submitted,

GARY H. PALM

Counsel of Record

Attorney for Amicus Curiae,

The Anti-Poverty Project

Edwin F. Mandel Legal Aid Clinic

University of Chicago Law School

In Support of Respondent

January 6, 1997

STaTE OF AmrOMe

OFPICE OF “WE ATTORNEY GENERAL

jaan? Wooos Oe a te]

a eer 273 WEST WaseergtOn Our 45007 2970 "BSCOMER 2088

OCRECT LIME: $42-4302

fad: 5414008

October 3, 1996

Gary 4. Palm

Edwin F Mandel Clin of

The University of Chicago Law School

6020 Soum Unversity Avenue

Chucago, (L 60657-2786

Pursuant © your request, on behalf of the Peationer w Slessung v. Freestone, No. 95-

(441, [ coaseat co che filing of an amucus curiae Dmef by The Edwin F. Mandel Legal Aud

Clisuc.

-: st

& 4 ee eee ee ee ee en ee

|

\LTSMULER. BERZOW. NUSSBAUM. BeRzon & RUBIN

arrvOencrt at we

‘ene + «4° teuet® ry @Oer sreacer tu't oo

“-#t7e & 84°70"

s'te~an © 84°50"

rere 9. oy ttt SSP GGnere

-Cee, Ge ‘ae @° 6!) Jee 008

Pot. rae

tree @ tem

"Oe ‘ea wan

ee i ba

scorn’ «4 490 O

3aene08 «& GOTO

ee Lee oom wee

ten Pee C18CS c4u./OOn's & CO

October 9, 1996

Gary Pals

Mandel Legal Aid Clinic of Chicago

6020 S$. University Ave.

Chicago, IL 60637

Re: Blessing ». Freestone

U.S. Suprema Court No. 95-1441

Dear Gary:

This is to confirm that I consent to the filing of an amicus

curiae brief by the Mandel Legal Aid Clinic of Chicago on benalft

of respondents in the above-entitied satter.

Sincerely,

r 7 ee

Mareha S. Serton

MSB/jh

282 Ee ee eet ye ee eee ape PIO <a ty IE Be LI. we res Oe LLL LLL ED

BEST AVAILABLE COPY’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.